Contract Headaches

Ten clauses to give an agent pause

By Ginger Clark
|

Jul 15, 2011

Back in May, when Harold Camping swore that the world would end, an agent I follow on Twitter said something to the effect of, "If I knew the rapture was coming I wouldn't have spent my last year on Earth negotiating the new [a certain Big Six publisher] boilerplate."

I (and many others, I bet) felt that agent's pain. More than one of the Big Six publishers has significantly revised their boilerplate recently. While a contract on a well-established boilerplate can take weeks, possibly even months, to negotiate, a whole new boilerplate is going to take you months, minimum. Seasons will change—note the plural. It will possibly take longer than Conan O'Brien hosted The Tonight Show. (Before you Wikipedia that, Conan hosted for seven months, three weeks.)

Putting aside a complete boilerplate revision, it seems that every new contract that comes across my desk has new language—often in clauses that have not changed in years. Here are 10 clauses that have been concerning me recently in negotiations. I'm sure other agents will have their own issues.

The List

1. Plain, regular, text-only e-book language. The definition has changed over the years, of course—but what happens if the e-book is published and is filled with typos and mistakes? Can the author do something about this before or after it's released? (There are a dozen other issues with e-book language that I am not going to address here because I have a space limit.)

2. Enhanced e-books. The new frontier in publishing. Should the author even grant these rights to the publisher? If you do, how do you protect a potential film option? Should we even try to protect a potential film option? Have you, or anyone you know, ever had an option exercised? Really? Congratulations!

3. Audio. Lately, I've been having a bit more resistance than before in negotiations about the author keeping audio rights. I attribute this to how the concept of "the book" is changing—and to how many editors are DJs in their spare time. There are just SO MANY lately.

4. Out-of-print clause. Every time I get a contract lately, I have found myself breaking out two rulers (one for the old contract, one for the new) and going over this clause line by line, particularly checking to see if the definition of "in print" has changed and if there is a new sales threshold for it. I am considering getting a jeweler's loupe or an electron microscope specifically for the out-of-print clause.

5. Territories. I think of this as "getting to know the British Commonwealth of Nations" or, "why are we fighting about who gets Tuvalu, and how much would a one-way plane ticket there cost?" Yes, a good agent (and publisher) thinks globally—but territory issues still come up very regularly in negotiations. When I'm having a discussion (let's not call it an argument!) with an American or British publisher about who gets to publish exclusively, I like to look over the list of territories and imagine myself on a beach somewhere in Bermuda, the Maldives, Papua New Guinea, or what I'm sure are the warm, white sands of the British Antarctic Territory.

6. Speaking of foreign territories: export royalties. There's a lot of money to be made abroad. So perhaps it's time to discuss raising that export royalty, so my client can have a larger share. Oh, it's not time? Darn, I was so excited.

7. Oh, speaking of royalties I'd like to address the high discount threshold. Maybe it's time to address that, particularly in non-American markets, where a rising proportion of sales are showing up under the high discount royalty? It's not time to address that, either? Oh, come on!

8. Accounting: Comics publishers have been paying royalties quarterly, and some e-book only publishers pay monthly. I have heard publishers say they are capable of sending royalty statements more than twice a year. Wouldn't that be lovely? (Ignore your bookkeeper's objections, they are just being cranky!)

9. Online revenue: If there is any money to be made from advertising via a search inside the book program, or other online small sales or transactions, shouldn't the author get a share? One publisher calls these transactions and those similar to it "microtransactions." The amount of time I've spent discussing this clause with publishers has not been "micro."

10. Sales through the publisher's own Web site: Theses sale should be full royalties. I'm not clear as to why we're arguing over this. Why are we? Maybe both parties involved here could use a vacation?

I hear the Pitcairn Islands are just lovely this time of year.

Ginger Clark is an agent at Curtis Brown Ltd. All opinions are her own, except for any from that Wikipedia mention above—and really, if you don't know that Conan was on for less than eight months, where were you in the first half of 2010?

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